State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1325

State of Minnesota,
Respondent,

vs.

Christopher Michael Loving,
Appellant.

Filed May 26, 2020
Affirmed
Johnson, Judge

Mower County District Court
File No. 50-CR-18-2121

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kristen M. Nelsen, Mower County Attorney, Megan A. Burroughs, Assistant County
Attorney, Austin, Minnesota (for respondent)

Cathryn Middlebrook , Chief Appellate Public Defender, Gina Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Christopher Michael Loving pleaded guilty to a charge of failure to register as a
predatory offender. The district court sentenced him to 46 months of imprisonment, which

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is the longest sentence within the presumptive sentencing range. On appeal, Loving argues
that the district court should have sentenced him to 39 months of imprisonment, which is
the mid-point of the presumptive sentencing range. We affirm.
FACTS
On October 4, 2018, a Mower County Sheriff’s Deputy stopped a vehicle because
its taillights and license-plate lights were not working. The deputy identified the driver as
Loving, whom the deputy knew to be a predatory offender . The deputy arrested Loving
because he had not included the vehicle in his predatory-offender registration. Deputies
searched Loving and his vehicle incident to his arrest. They found marijuana in his vehicle
and marijuana, methamphetamine, and heroin on his person.
The state charged Loving with one count of the felony offense of failure to register
as a predatory offender, in violation of Minn. Stat. § 243.166, subd. 5(a) (2018); two counts
of fifth-degree possession of controlled substances, in violation of Minn. Stat. § 152.025,
subd. 2(1) (2018); one count of possession of marijuana in a motor vehicle, in violation of
Minn. Stat. § 152.027, subd. 3 (2018); and one count of possession of drug paraphernalia,
in violation of Minn. Stat. § 152.092(a) (2018).
In December 2018, Loving and the state entered into a plea agreement . Loving
agreed to plead guilty to failure to register as a predatory offender, and the state agreed to
dismiss the remaining charges and to recommend a downward durational departure to a
sentence of 24 months of imprisonment, “as long as Mr. Loving’s of good behavior , law
abiding, completes and complies with the PSI process , [and] returns for sentencing.”
Loving’s attorney informed the district cour t that, “[i]n the event that there is a violation,

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the State then will be requesting a top -of-the-box sentence.” The district court relea sed
Loving pending sentencing.
In February 2019, before sentencing, Loving was arrested for another registration
violation. In addition, t he state alleged that Loving violated the terms of his release by
refusing to submit to chemical testing, by failing to remain law abiding , and by failing to
comply with h is predatory -offender requirements . The district court revoked Loving’s
conditional release. He later was released again, with conditions.
In May 2019, Loving failed to appear for sentencing. At a subsequent hearing, the
state informed the di strict court that it would request a sentence within the presumptive
range, instead of a downward durational departure, because Loving had failed to remain
law abiding and had violated the terms of his release. At the rescheduled sentencing
hearing, Loving requested an executed sentence of 39 months of imprisonment, which is
the mid-point of the presumptive range of 34 to 46 months. The state requested an executed
sentence of 46 months of imprisonment, the top of the presumptive range. See Minn. Sent.
Guidelines 2.B.2.c, 4.B (2018). The district court imposed an executed sentence of
46 months of imprisonment. Loving appeals.
D E C I S I O N
Loving argues that the district court erred by imposing a sentence at the top of the
presumptive range instead of the middle of the presumptive range. The state did not file a
responsive brief. “If the respondent fails or neglects to serve and file its brief, the case
shall be determined on the merits.” Minn. R. Civ. App. P. 142.03.

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The Minnesota Sentencing Guidelines prescribe presumptive sentences for felony
offenses. Minn. Sent. Guidelines 2.C (2018). For any particular offense, the presumptive
sentence is “presumed to be appropriate for all typical cases sharing criminal history and
offense severity ch aracteristics.” Minn. Sent. Guidelines 1.B.13 (2018). The applicable
cell in the applicable grid typically states a “presumptive range,” which spans durations
that are “15 percent lower and 20 percent higher than the fixed duration displayed in each
cell.” Minn. Sent. Guidelines 1.B.13.c . A defendant’s presumptive sentencing range is
subject to a three -month custody enhancement if the defendant receives a custody status
point and has a criminal-history score that exceeds the maximum score on the applicable
grid. Minn. Sent. Guidelines 2.B.2.c. A district court may depart from the presumptive
range only if “there exist identifiable, substantial, and compelling circumstances to support
a departure.” Minn. Sent. Guidelines 2.D.1 (2018).
This court has stated that “any sentence within the presumptive range . . . constitutes
a presumptive sentence.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review
denied (Minn. July 20, 2010). We “will not generally review a district court’s exercise of
its discretion to sentence a defendant when the sentence imposed is within the presumptive
guidelines range.” Id. We may modify a presumptive sentence but only in “rare” cases
and only if modification is su pported by “compelling circumstances.” Id. (quotations
omitted).
Loving contends that the parties’ earlier agreement that the state would recommend
a downward durational departure (which he concedes is no longer enforceable) implies that
the parties believed that his offense was “less serious than a typical failure -to-register

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offense” and , thus, that there were compelling circumstances justifying a downward
durational departure. He contends further that the agreed-upon compelling circumstances
should cause this court to modify the sentence imposed by the district court.
The district court did not state any reasons for imposing a sentence of 46 months.
But a district court is not required to state reasons for imposing a presumptive senten ce.
State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013), review denied (Minn. Sept. 17,
2013); State v. Van Ruler , 378 N.W.2d 77, 80 (Minn. App. 1985). Similarly, the parties
did not identify the reasons why the state agreed to recommend a downward durational
departure. Loving’s appellate brief also does not identify the mitigating factors that might
have justified a downward durational departure. In the absence of such information, this
court is not in a position to second -guess the district court’s broad discretion to impose a
presumptive sentence. See Delk, 781 N.W.2d at 428.
Thus, the district court did not err by imposing a sentence at the top of the
presumptive range instead of the middle of the presumptive range.
Affirmed.